A patent is a grant of protection for an invention. It’s grantedby the U.S. Patent and Trademark Office (PTO) and has a term of 14to 20 years. Owning a patent gives you the right to stop someoneelse from making, using or selling your invention without yourpermission.
Only an inventor may apply for a patent on his or her idea. Iftwo or more people participate in the creation of an invention, thelaw requires that all participants apply for a patent as jointinventors. A person applying for a patent on an idea he or she didnot directly invent is subject to criminal penalties andinvalidation of the patent, if one was issued. A person making onlya financial contribution to an invention can’t be named as a jointinventor.
There are actually several different type of patents, but thetwo following patents are the type entrepreneurs use mostoften:
A design patent provides protection on the appearance orornamental design of your invention. It is generally cheaper,simpler to file and more easily accepted by the PTO than othertypes of patents. However, its overall protection isn’t aseffective as a utility patent because the invention’s design can bechanged many times, thus helping others who want to use your designavoid patent infringement. Its term is 14 years.
To receive a design patent, your invention must pass thesetests:
- It must have a new, original and ornamental design.
- The novel features of your design must not be obvious.
A utility patent protects the function or method of yourinvention. This patent is more complicated than a design patentbecause it requires you to explain how your invention is used. Autility patent is usually more expensive to obtain, requires moreinput from an attorney, and is more difficult to have issued by thePTO. Its protection is greater than that of a design patent,however, because patenting a method or function provides stronger,broader coverage. A person trying to make a product similar to yourpatented one must avoid all the claims of your patent. The utilitypatent’s term is 20 years. Most inventions can be filed as a designpatent, utility patent or both.
To receive a utility patent, your invention must pass fourtests:
- Statutory-class test. Your invention can reasonably beclassified as a process, machine, manufacture, composition or a”new use” of any one or more of these classifications.
- Utility test. Your invention is considered useful.
- Novelty test. Your invention has a feature that sets itapart from previous inventions and is unknown to the public.
- “Unobviousness” test. Your invention’s novelty must notbe obvious to someone who has ordinary skill in the area of yourinvention. For example, if your invention is a hairbrush, theuniqueness of its design must not be obvious to someone who uses ahairbrush every day.
If you’re trying to determine if your idea has already beenpatented, you can have a search performed on all existing patents.This patent search will tell you whether other patents have alreadybeen issued that may disclose or suggest your invention. You canperform a patent search on your own, use the Internet or hire apatent researcher.
You can find a professional patent searcher by looking in theWashington, DC, Yellow Pages under “Patent Searchers.” These peopleactually go to the PTO search room where the most currentinformation is available. This type of search is the most accurate,although it can be expensive. Average fees for searches start at$200.
To perform a search on your own, simply find the nearest publiclibrary that’s been designated as a Patent and Trademark DepositoryLibrary. They’re staffed with knowledgeable librarians who canassist you in your search. If you want to search online, visit theU.S. Patent andTrademark Office’s website. Or search the IBM patent site,which is more comprehensive than the USPTO site–it allows you todo more sophisticated searches and displays drawings of thepatented products.
